Hksar v Lam Hin Fai

CourtCourt of Final Appeal (Hong Kong)
Judgment Date06 Jul 2016
Judgement NumberFAMC3/2016
SubjectMiscellaneous Proceedings (Criminal)
FAMC3/2016 HKSAR v. LAM HIN FAI

FAMC 3/2016

IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO 3 OF 2016 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM HCMA 220 OF 2012)

_______________

BETWEEN
HKSAR Respondent
and
LAM HIN FAI (林顯輝) Applicant

_______________

Appeal Committee: Mr Justice Tang PJ, Mr Justice Fok PJ and Mr Justice Stock NPJ
Date of Hearing and Determination: 28 June 2016
Date of Reasons for Determination: 6 July 2016

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REASONS FOR DETERMINATION

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Mr Justice Stock NPJ:

1. On 16 December 2011, the applicant was convicted by a magistrate[1] on five charges of fraud, contrary to section 16A of the Theft Ordinance, Cap 210. On 6 January 2012, he was sentenced to 6 months’ imprisonment. On 27 June 2013, his appeal against conviction to the Court of First Instance was reserved by Andrew Chan J to the Court of Appeal pursuant to section 118(1)(d) of the Magistrates Ordinance, Cap 227 for consideration of a point of law which is not germane to the present application. The appeal was heard in 15 January 2014 and by a judgment dated 9 July 2015, the Court of Appeal[2] dismissed the appeal. The applicant now seeks leave to appeal out of time against conviction on the ground that substantial and grave injustice has been occasioned[3].

2. On 28 June 2016, we dismissed the application with reasons to follow. These are our reasons.

3. The offences were said to have taken place in 2008 and 2009 when the applicant was a regional manager employed by Fortis Insurance Company (Asia) Ltd (“Fortis”). The main prosecution witnesses, Joseph Fung (“PW1”) and Ms Lau Yee Kuen (“PW2”), were his subordinates - “down-line” insurance agents or brokers. The effect of their evidence was that the applicant encouraged them to cause insurance policies to be issued in the name of third parties regardless of the knowledge and consent of those third parties with the insurance premiums to be paid by the brokers themselves, thereby inducing Fortis into believing that the third parties were genuine applicants, into issuing insurance policies and into paying commissions to PW1 and PW2. The incentive for PW1 and PW2 was the possibility of a profit and the likelihood of prolonging their appointment as brokers.

4. The application is out of time but, given the history provided by the applicant, including a failed attempt by him at a stage when he was unrepresented to file grounds of appeal very shortly after expiry of the time prescribed, the respondent takes no point as to time and, in the light of that history, the time factor did not weigh in our considerations.

5. It is now trite that the substantial and grave injustice limb of section 32 is but “a residual safeguard...

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